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  • Writer's pictureRosie Burbidge

How do you get copyright protection?

YSL gardens, bench, Morocco
Take a seat and learn about some copyright basics

Throughout Europe, and indeed in most jurisdictions worldwide, copyright arises automatically upon the creation of the work. Copyright is therefore a very flexible right which has come to the rescue of many a fashion brand. For the major international copyright treaties such as the Berne Convention and TRIPS, it is an essential requirement that all signatories (in practice most countries worldwide) offer automatic protection for copyright works.

While you do not need to register a copyright work in order for it to have copyright protection, in some territories, notably the US and China, registration is a requirement in order to get full protection. For example, it can affect the amount of damages available or the willingness of Customs to take action.

Consequently, in order to be able to rely upon those rights in jurisdictions which offer a registration system, it is wise to register important rights sooner rather than later.

In addition, copyright registration provides an easy way to evidence the date a copyright work was created. Some of the EU Member States such as Spain and France have various voluntary systems for copyright registration.

The main country to consider registering your copyright works is the US. Importantly, if the registration is made within three months of publication (or prior to infringement of a work) in addition to actual damages, statutory damages and legal costs are available. If you do not register your rights in time it may not be worth litigating in the US because the legal costs will likely outweigh both the damages and the commercial benefit associated with the injunction. Provided the copyright work is registered within five years of creation, a US copyright registration offers both proof of validity of the right and a presumption of ownership.

It can be very helpful to have copyright registration in China, particularly for important patterns and logos. Copyright protection can often be cheaper and easier to obtain than trade mark protection and in practice it can be hard to succeed in an enforcement action or in detaining goods via Customs without copyright registration.

In Argentina, unless a work is registered it can be freely used by third parties provided it is not altered and the copyright owner is correctly attributed. Similarly, in Mexico copyright registration is very useful when it comes to enforcing your rights. Mexican copyright must be registered in the name of an individual, i.e., it must identify an ‘author’ although the copyright can be owned by a legal entity.

In Canada and Brazil, while registration is not required, it is helpful evidence of the date of registration and the copyright owner which the court will accept if the copyright owner seeks to rely on it (unless an opponent can prove otherwise).


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